Whenever a clinical stone is turned over, ageism is revealed
— Professor John Young, National Clinical Director for Integration and the Frail Elderly .
The elderly have the ethical and legal equivalence of younger adults, yet are treated differently by society. Numerous recent reports have exposed poor inpatient care resulting in part from institutional ageism, which has moral and legal implications for healthcare providers. Morally, there is an argument for positive ‘exceptionalism’ in elderly peri-operative care, pursuing quality improvement through use of a dignity agenda. Legally, numerous changes in human rights, equality, consent, capacity, and end-of-life laws and professional guidance have consistently re-emphasised the need for greater communication between doctors, patients, their relatives and carers. This review describes current ethical thinking and legal precedent (in England and Wales), and directs readers to consider areas in which the law might change in the near future, particularly with regard to the end-of-life care of elderly surgical patients.
There is no legal definition of ‘elderly’ in English or Welsh law. Instead, there are definitions for when adulthood begins (over 16–18 years) and ends (with death). Pragmatically, society has traditionally recognised the transition from middle age to old age by retirement from the workplace, a time of life at which the contribution made by an individual to society is recognised by their entitlement to a pension, effectively ‘pay without work’. However, this does not help with the definition of old age: people retire early, and the age at which a state pension is received (61–68 depending on birth date and sex) may differ from the retirement age. In addition, the pension age varies according to the projected cost of any future old-age dependency gap, effectively the ratio between adults who pay tax and adults who have retired and withdraw a pension. In 1994, the state pension age was 65 years for men and 60 for women, was gradually equalised to 65 for both from 2010, and will rise to 68 between 2044 and 2046, in recognition of the fact that people are surviving both longer and fitter than their predecessors. The compulsory retirement age (65 years) was abolished in 2011.
Disregarding philosophical arguments, the option of an extended working life can be interpreted as a further sign of progress. Many people want to work longer, albeit perhaps differently, less strenuously and less often , and would appreciate the legal protection to do so. Work after retirement age appears to confer health and psychological benefits [3, 4]. Nevertheless, most old people eventually stop working, and often as a result of the very reasons that delayed their retirement: illness, frailty, fear of burden or dependence and cognitive decline.
Chronological and functional ages, then, are measures of the length of life, towards the far end of which lie ‘old age’ and ‘oldest old’ age . This defines both the legal and ethical positions concerning old age: old people are older adults, but effectively the same legal and ethical entities as younger adults.
Should older people be treated differently within healthcare?
Despite their legal and ethical equivalence, older people are treated differently by society , and this is apparent within the provision of healthcare. In fact, their ‘exceptional’ treatment is entirely appropriate: older people access healthcare far more frequently than younger patients, because they are more likely to suffer an illness and less likely to recover from it, incurring significant financial cost. However, far from providing negative reasons that support rationing of healthcare for the elderly, as has been proposed mainly on the assumption that costs will inexorably increase , illness would seem to provide very positive moral reasons for extending geriatric medical and surgical care beyond that currently administered. Indeed, denying the elderly healthcare on the basis of rising cost alone, which is effectively a permutation of the ‘fair innings’ argument , is increasingly less relevant as longevity becomes less affected by illness and more dependent on the biological limits of ageing .
In terms of any deontological duty of healthcare provision on the basis of need, it would appear to be the elderly who should be prioritised. This mirrors the professional/moral duty of the doctor, to provide healthcare on the basis of need, without regard for extraneous influences such as ability to pay or resource rationing [10-12]. Furthermore, from the principlist perspective, prioritised healthcare for the elderly could be considered both the best way of preserving their autonomy and the most just way of acting.
Prioritising care of the elderly also makes good utilitarian and financial sense. Essentially the optimisation of the greatest good for the greatest number of people, utilitarianism can be used as an argument against elderly care, by calculating for example, that expensive treatment for a limited number of younger patients is more beneficial for society than cheaper treatments for larger numbers of older patients (Table 1). However, such calculations tend to be predictive and prescriptive: they assume that the younger patient, in the example given in Table 1, will not require further treatments in the next 50 years and that the older patient will die within five years, when he/she may survive longer. More importantly, they place an objective value on the quality of a patient's life: the 75-year-old may consider that treatment has significantly increased the subjective quality of his/her life, relatively if not absolutely . Finally, they imply that reducing the cost of a treatment is an essential component of increasing its utility. This explains the fundamental importance of reducing the inpatient cost of healthcare for the elderly by reducing complication rates and therefore length of stay, particularly for high-volume, high-/medium-cost procedures, such as emergency abdominal aortic aneurysm, laparotomy and hip fracture. Put another way, get care of the elderly surgical patient ‘right’, and it not only benefits the patient clinically, but also reduces costs and alleviates the need to ration healthcare for other patients.
|Life years remaining to 80 years age; years||50||5||10||5||5|
|Cost of treatment; units||40 000||1000||1000||1000||750|
However, despite these moral imperatives, the elderly are not always provided with prioritised high-quality healthcare, with the result that their care is more expensive and their outcomes poorer than they need to be. This is a confused dichotomy: it is not age per se that leads the elderly to seek healthcare so much as illnesses resulting from being old, and yet access to healthcare and attitudes to the elderly within healthcare are often discriminatorily related to the patient's age rather than to their illness .
Examples of age discrimination in the National Health Service (NHS) are commonplace , despite specific Department of Health guidance . For example, the elderly are less likely to be offered day-care surgery  and critical care  than younger patients. The concern is that endemic ageism promulgates a culture in which the elderly are viewed differently and treated less well than younger patients, and that institutional acceptance of poor quality care then becomes the norm. This is implicit in the findings of the Francis report into the (lack of) care received by mainly elderly patients at the Mid Staffordshire NHS Trust , echoing the Health Service Ombudsman's 2011 report Care and compassion? . The Royal College of Physicians is correct to point out in response to the Francis report that ‘if the NHS gets care right for vulnerable older people, the most difficult group to manage, then we believe care is likely to be improved for all other patients’ .
Morally, there is an urgent need to reverse the cultural apathy towards treatment of the elderly in hospitals, but managing this transition is likely to be difficult. Inherent societal ageism needs to be overcome, and this will not be easy. Until such time as this trend is reversed, a more practical solution is to pursue a ‘dignity agenda’ in healthcare, such that the innate right of each elderly patient to be valued and receive ethical treatment is recognised . In response to the Health Service Ombudsman's report , the NHS Confederation set up a Commission on Dignity in Care for Older People, specifically to recommend pragmatic solutions to the poor care received by the elderly in hospitals and care homes . The report, which was welcomed by the General Medical Council (GMC), makes 37 recommendations, and introduces the concept of ‘always events’ (contrasting with ‘never’ events), such that older patients should always:
- Be treated as they wish to be treated – with respect, dignity and courtesy;
- Have their nutrition and hydration needs remembered;
- Be encouraged formal and informally to provide feedback (along with their relatives, carers and advocates), to improve practice;
- Have poor practice in their care challenged, learnt from and reported, as appropriate.
Implementation of the recommendations in anaesthetic practice might involve, for example:
- Challenging unacceptable language, attitudes or tones of voice used when addressing elderly patients;
- Appointing an ‘Older people's champion’ and Lead Clinician for Geriatric Anaesthesia within each hospital;
- Appointing a Professor of Geriatric Anaesthesia at national level;
- Including geriatric anaesthesia as a core module for anaesthetists in training;
- Building consideration for the elderly into all future guidelines where appropriate;
- Redesigning recovery unit facilities to optimise early postoperative recovery;
- Working with geriatricians to develop multimodal, multidisciplinary care pathways for peri-operative care of elderly patients;
- Challenging clinical and care-access decisions made on the basis of age rather than illness (in accordance with the Equality Act 2010 );
- Taking part in quality improvement programmes and contributing to audit and complaint analysis;
- Enabling decision-making using, for example, large print or audio patient information;
- Enabling recovery through attention to details such as taking care of functional aids (false teeth, glasses, hearing and walking aids);
- Adopting specific attitudes (for example, analgesia as a human right ).
Legal aspects of anaesthesia care for the elderly
As alluded to above, the elderly are equivalent to younger adults, in legal terms. Recent human rights and anti-discrimination statute confirms the common law position in this regard. The 18 articles of the Human Rights Act 1998 (HRA) define how the State, its public bodies (i.e. hospitals) and its individuals can interact with each other [26-28] and could be used to determine whether the treatment received by an elderly surgical patient is lawful . This is yet to be tested in law; at the time of writing, the treatment received by patients at Mid-Staffordshire NHS Trust  has been considered neither under article 3 of the HRA (i.e. whether it constitutes inhuman or degrading treatment), nor, indeed, under the Corporate Manslaughter/Homicide Act 2007 . The Disability Discrimination Act 2005 makes it unlawful to discriminate against persons on the grounds of their disability, requiring ‘providers of services’ (including the NHS) to improve physical access to facilities and services . The Equality Act 2010  makes it unlawful for (doctors) to discriminate against, victimise, or harass persons because of their age, or base decisions about care and treatment on a patient's age rather than a proper assessment of his/her social and physical needs. For example, a doctor should not refuse to refer patients for surgery based on their age alone, but must also consider their individual needs and physical condition.
Despite the legal equivalence of the elderly, advancing age is associated with cognitive decline, illness and an increasing likelihood of death, and these impact consensual decision-making about surgery, resuscitation and end-of-life care.
According to the common law in England and Wales, adults can consent to or refuse any medical treatment at any time and for whatever reason , provided that, at the time the decision about treatment needs to be made, the patient has the requisite mental capacity to make a decision voluntarily, based on the information provided.
Voluntariness, although rarely contested in court, is potentially compromised in older adults, particularly when there is dependency on caregivers or undue deferment to the views of third parties (usually younger relatives) , or in situations when the patient feels like a burden to the health service or individuals .
A theme that runs throughout the Francis report  concerns whether there should be a statutory ‘duty of candour’ providing for open admission of medical/systems error in the event of patient harm . This has relevance to the common law relating to consent, the standard of information provision, which approximates to ‘telling the patient what a reasonable person in the patient's position would want to know’, but falls short of demanding absolute candour. It will be interesting to see whether any future statutory duty of candour transfers to information provision in consent, finally closing the door on any therapeutic privilege of a doctor not to tell a patient the truth for fear he/she will refuse treatment.
The presumption in law is that an adult patient has capacity unless the doctor (usually) decides that he/she does not have capacity, such that he/she fails the three-stage test proposed in the case of ReC  by not understanding and/or remembering the information provided by the doctor about the proposed treatment, and/or not using it and ‘weighing it in the balance’ when coming to a decision about whether or not to have treatment. Capacity is a question of fact: either the patient can understand/remember/use the information, in which case, he/she has sufficient capacity to decide, or he/she cannot understand and/or remember and/or use the information provided, in which case, he/she does not have sufficient capacity to decide to give or not give consent.
Adults with capacity continue to be treated according to the common law. However, although the prevalence of dementia may be declining , the number of older patients with dementia in the UK, for example, is expected to increase as the population ages, from 800 000 in 2012 to ~1 million in 2022 . The capacity for making decisions about their treatment may be impaired in older patients with dementia, or even absent. Older patients are also at risk of acute cognitive decline (delirium) secondary to infection, illness, changes in medication, hypothermia, pain and (opioid) analgesia. Formerly, no other person could consent to medical treatment on behalf of an adult without capacity, so treatment was provided without consent if a doctor (usually) considered the treatment necessary and in the patient's best interests, for example, hip fracture repair for the purposes of analgesia and rehabilitation in a patient with marked vascular dementia. However, concerns relating to the undue deference that such decision-making responsibility granted to doctors, together with general concerns about the legal safeguarding of vulnerable adults, stimulated a number of national reports, culminating in the enactment of the Mental Capacity Act 2005 (MCA) . In essence, the MCA represents a codification of previous common law, but adds statutory recognition of proxy decision makers and advance directives, as well as guaranteeing legal safeguards in research participation for patients who lack the mental capacity to make decisions.
The MCA has five core principles , the ramifications of which when translated in terms of medical care indicate that:
- Patients over 16 years of age have capacity unless they are clearly incapable i.e. doctors should assume that all adults, even if they have previously been diagnosed with a cognitive deficit, are capable of making decisions, unless they fail a ReC test of capacity and cannot understand and/or remember and/or use the information about treatment provided to them when a treatment decision needs to be made;
- Patients must be given a reasonable chance to demonstrate their capacity, which obliges the doctor, for instance, to provide information in a more digestible form (speaking more slowly/louder, large print information sheets), ensuring that communication aids are used (glasses, hearing aids);
- Adults with capacity can make ‘unwise’ decisions, for instance, when an otherwise well 90-year old refuses simple but life-saving surgery;
- Elderly patients without capacity should be treated with the minimum necessary intervention if provided in their best interests, allowing, for example, for palliative rather than definitive surgery, and surgery with intervention-limited postoperative care. Restraint should be very seldom needed, but can be used if: the patient lacks capacity; it is reasonably necessary and in their best interests to be restrained to prevent their harm; and it is proportionate to the harm that is likely to the patient, in which case, the restraint must be used with the minimum force necessary for the shortest time possible [40-43].
It should be noted that ‘best interests’ require consideration beyond what is in the patient's best medical interests, to include for example, financial and social factors, or concerns about future treatment that the patient may have voiced previously. Rather than deciding in isolation or in contravention of their wishes (as was more accepted previously ), the GMC recognises a duty of the doctor to try reasonably to ascertain what the wishes of patients might have been about the decision that needs to be made currently , by asking other properly interested parties, such as close relatives and carers.
The MCA holds that reasonable steps must be taken to ascertain whether the patient has made a previous advanced directive (‘living will’). Advanced directives have been recognised in common law since ReAK in 2001 , but are provided statutory protection by the MCA. Legally, they proscribe treatment (but cannot demand treatment that doctors do not think is in the incompetent patient's best interests ) provided that a refusal of treatment was clearly defined at the time the previously competent patient made that voluntary decision, based on information about the likely consequences of refusal in the circumstances that would be likely to arise. Advanced directives are still relatively uncommon; analysis of the 395 most recent hip fracture patients undergoing surgery in Brighton, for example, shows that whether an advanced directive existed was only ascertained in 194 (49.1%) patients, and only 15 (7.7%) of these had formally made one.
More normally, however, information may be provided by relatives or carers, and the closer their relationship to the patient, the more informative they will be. Similar to an advanced directive, a competent person can voluntarily appoint a donee of a Lasting Power of Attorney (LPA) to make surgical treatment decisions on their behalf, should he/she lose that capacity him/herself through, for example, dementia. Provided they are competent to decide voluntarily themselves based on the information provided them, and are correctly registered with the Office of the Public Guardian, donees can make any and all treatment decisions, including end-of-life decisions about resuscitation and treatment withdrawal, if indicated.
This differs from the power invested in either a Court (of Protection)-appointed deputy (CAD), who can make all but end-of-life treatment decisions about an incompetent adult who had not previously chosen an LPA, written an advanced directive or has surviving family , or an Independent Mental Capacity Advocate who supports decision making by LPAs, CADs, doctors, relatives and properly interested parties, but who cannot make any proxy surgical treatment decisions him/herself.
Involving older patients in research
A recurrent theme in the treatment of elderly surgical patients is that their care is not particularly evidence-based. Indeed, many of the drugs taken and procedures undergone by the elderly are extrapolated from tightly formalised, randomised (controlled) trials involving younger, healthier participants. There are two moral questions here. First, is it right knowingly to use trial patients who do not patho-/physio-/pharmacologically represent the eventual target patient group, introducing selection bias , usually for reasons of ease (and therefore cost) of trial conductance ? Secondly, and following from this, is it right not to do research that might potentially benefit future patients, because problems with study design, patient safety, cognitive dysfunction and the consent process, and the introduction of patient biases, might otherwise make a trial virtually impossible, or too expensive, to recruit to from the eventual target population ? The moral solution is that basic science and clinical research need to be performed – and urgently – that involves the spectrum of unwell elderly patients in order to understand better, for example, how drug pharmacokinetics and interactions have beneficial and adverse effects in the very elderly . There is also an ethical argument for their inclusion into prospective, comprehensive, anonymised observational data collection, to break the ‘cycle of ignorance’ that results from auditing practice that is not guided by evidence.
The involvement of adult participants who lack decision-making capacity in research is now specified by the MCA . The research proposed must have the ethical approval of a properly constituted Research Ethics Committee (although these may be confused about the law themselves ), aim to alleviate the patient's condition, not be possible on patients who retain capacity, and potentially benefit the patient or aim to help future patients with the same illness (in which case, the research must carry minimal risk). In addition, the patient must not appear to object to take part, and the welfare of the patient must always be placed above the importance of the research and confirmed by an appointed third party [54-57]. Although this process can appear so resource- and time-intensive as to inhibit the conduct of research involving the elderly, this has been found not necessarily to be the case, provided provision is made for the inherent difficulties anticipated [58, 59].
The care of elderly surgical patients is inextricably linked to considerations about end-of-life care, as postoperative mortality increases independently with age , particularly after emergency surgery .
The last decade has seen trenchant and partisan debate about end-of-life issues, including the human rights aspects of withdrawing treatment, assisted dying, resuscitation status and medical futility. Fortunately, the GMC has proved adept at rapidly updating its professional guidance in this area, in line with changes in the law .
The case of Diane Pretty, a 42-year-old with end-stage motor neurone disease, confirmed the interpretation of several articles of the HRA 1998, namely that a ‘right to life’ (Article 2) does not extend to a right to choose when to die, that her medical condition caused her suffering rather than any inhumane medical treatment (Article 3) and that any right to respect for private and family life (Article 8) related to the conduct of life rather than how her husband might assist her death . In finding the GMC's previous end-of-life guidance lawful in Burke, the Court of Appeal effectively confirmed both the common law position established in Bland  by finding that the patient's medical condition (in Burke's case, spinocerebellar ataxia) causes death rather than any withdrawal of treatment (including artificial hydration and nutrition), and that withdrawal of treatment from a patient without competence does not constitute inhuman or degrading treatment . Furthermore, doctors are not obliged to provide medical treatment requested in any advanced directive if they do not think that it is in the subsequently incompetent patient's best interests.
In 2010, after Burke, the GMC replaced its 2002 guidance Withholding and Withdrawing Life-prolonging Treatments with the current guidance, to take into account changes in good medical practice and consent guidance. Unfortunately, this meant that the new guidance was not able to include the precedent set by the case of Debbie Purdy, a 46-year old with primary progressive multiple sclerosis, in which the House of Lords  ordered the Director of Public Prosecutions (DPP) to issue guidance on when a patient's relative might face prosecution for assisting or abetting a suicide contrary to s.2(1) of the Suicide Act 1961 , ruling that the lack of clarity constituted a violation of the right to Ms. Purdy's private and family life. The DPP duly published this guidance in February, 2010, defining the public interest factors against prosecution, basically when a suspect close to the terminally ill patient minimally helped the patient to act on his/her clear wish to die and then reported the suicide . However, the DPP was specific in proscribing medical involvement by stating among the public interest factors in favour of prosecution (para. 14) that a suspect was ‘acting in his or her capacity as a medical doctor … and the victim was in his or her care’. The GMC issued guidance in January, 2013, for assessing fitness to practise after allegations that a doctor assisted death , making it clear that ‘nothing in this guidance prevents doctors from prescribing medicines or treatment to alleviate pain or other distressing symptoms’, but re-emphasising that assisting or abetting a suicide is a criminal offence. This is advice that may yet need to be changed if the Assisted Dying Bill is enacted, allowing assisted suicide by patient self-administration of medication prescribed by a doctor specifically for the purpose of suicide.
However, concerns about medical intervention led the Minister of State for Care Support to commission an independent report on the formal (‘Liverpool Care’) pathway (LCP) by which terminal inpatient care has more recently been formalised , which reported in July, 2013. The report acknowledged that, properly applied, the LCP did not constitute ‘assisted dying’ or ‘physician-assisted suicide’, but failed to take into account the wishes of patients and relatives  and the dignity of the patient. The Department of Health agreed to phase out the LCP within 12 months, and it is likely that the GMC will need to amend its end-of-life guidance accordingly and assist in finding an alternative . Agreeing with the GMC and joint BMA/Resuscitation Council/Royal College of Nursing resuscitation guidelines [45, 70], the Commission re-emphasised the most basic of precepts in elderly peri-operative care, that there are situations that arise relatively commonly when the risks of treatment may outweigh the benefits, or the treatment may have minimal success, or be futile , in which case decisions about resuscitation status and end-of-life care must be taken early and in consultation with patients and their relatives/carers, as appropriate.
The elderly occupy merely the far end of the age spectrum of adulthood, and therefore should be treated morally and legally the same as other, younger adults. However, it can be argued that their healthcare demands an attitude of positive exceptionalism, to oppose the negative stereotyping and ageism that appear to characterise their care currently and that contribute to their relatively poorer access to, and outcome after, surgery. The law is evolving rapidly to address perceived deficits in the ethical health treatment of elderly patients, and professional guidance is necessarily evolving to include these changes. However, it remains to be seen whether the law provides a more effective tool for changing cultural apathy towards the elderly in peri-operative healthcare, or whether change is brought about primarily by professional leadership and the informed involvement of all health professionals; it is likely that both will be needed.
SW was a member of the AAGBI Consent and Anaesthesia for the Elderly Guidelines Working Parties, is a Council member of the Age Anaesthesia Association, and is an Editor of Anaesthesia.